1. The petition which gave rise to the present case denounced the
massacre of 268 inhabitants of Plan de Sánchez, Baja Verapaz, by members of the armed
forces of Guatemala on July 18, 1982. The petitioners submit that the massacre was
perpetrated pursuant to a State policy "designed to defeat the insurgent movement
through the strategic eradication of its civilian support base." They contend that
the violations were committed on such a scale as to represent massive violations of the
American Convention on Human Rights and the relevant dispositions of international
humanitarian law, and constitute crimes against humanity and genocide.

2. The petitioners allege that the State is responsible for the acts of
its agents in killing civilian men, women and children, in violation of Articles 4, 5, 7,
12, 13, 19, 21 and 24 of the American Convention, the failure to respond with measures of
judicial protection and guarantees, in violation of Articles 8 and 25, and the failure to
respect and ensure the foregoing rights of the victims in violation of Article 1(1). In
particular, the petitioners complain that the State has failed to: undertake a serious
investigation designed to officially establish the facts and responsibility for the
crimes; prosecute and punish the material and intellectual authors; or repair the
consequences.

3. The State recognizes that, during the armed conflict in Guatemala
both parties committed abuses, and events such as those in Plan de Sánchez stand as
testimony to that fact. It acknowledges as evident the grave consequences for the victims.
The State maintains that the Commission for Historical Clarification (Comisión para el
Esclarecimiento Histórico, hereinafter "CEH") established by the agreement
of the parties to the conflict will address questions of institutional responsibility, and
the Guatemalan judiciary has yet to establish the responsibility of any state agents for
the facts denounced. The State contends that the petition is inadmissible because the
petitioners failed to exhaust domestic remedies, and because it was untimely filed.

4. As set forth in the report that follows, having examined the
contentions of the parties on the question of admissibility, the Commission decided to
admit the present case and proceed to an analysis of the merits.

II. PROCESSING BEFORE THE COMMISSION

5. The Commission received the petition in an English language version
on October 25, 1996. The Spanish language version, required for possible submission to the
State, was received on February 4, 1997. Case 11.763 was opened on July 1, 1997. By a note
of that date, the Commission transmitted the pertinent parts of the petition to the State
of Guatemala, with the submission of information deemed pertinent requested within 90
days.

6. Pursuant to an August 14, 1997 request of the petitioners, the
Commission scheduled a hearing on the case during its 97th period of sessions,
and notified both parties by means of a note of September 4, 1997.

7. The States response to the petition, dated October 1, 1997,
was received by the Commission on October 3, 1997. This information was transmitted to the
petitioners on October 6, 1997, with observations requested within 45 days.

8. The hearing referred to was held on October 9, 1997, at the
headquarters of the Commission, with representatives of both parties present.

9. The petitioners requested an additional hearing by means of a note
of January 16, 1998. In a note of February 11, 1998, the Commission informed them that it
would be unable to grant that request due to the volume of hearings already programmed for
its next meeting.

10. On May 12, 1998 the petitioners provided the Commission with a copy
of a letter which had been transmitted to the Presidential Coordinating Commission for
Executive Policy in Human Rights Matters (COPREDEH), recounting the internal remedies
which had been attempted or remained pending during the previous six months. In a note of
July 15, 1998, the Commission indicated that the information would be incorporated in the
case file.

III. THE POSITIONS OF THE PARTIES

A. The Position of the Petitioners

11. The petitioners characterize the area of Rabinal as predominantly
inhabited by members of the Maya population, and described Plan de Sánchez as having had
an entirely Maya-Achi population at the time of the events in question. The petitioners
allege that the military maintained a strong presence in Rabinal in 1982, and that
soldiers came to Plan de Sánchez periodically to ask about the movements of male
residents, and to intimidate members of the local population, particularly those who did
not participate in the Civil Self-defense Patrols (hereinafter "PACs").1 As a consequence, they contend that there "was a climate of
considerable fear in the community in the first half of 1982," and the men would
sometimes leave the community to hide from the soldiers.

12. Because Plan de Sánchez is located along a path to Rabinal, on
Sunday July 18, 1982, a market day, people from neighboring villages were passing through
the community. According to the petition, the victims of the massacre included residents
of the communities of Chipuerta, Joya de Ramos, Raxjut, Volcanillo, Coxojabaj, Las Tunas,
Las Minas, Las Ventanas, Ixchel, Chiac, Concul, Chichupac, Plan de Sánchez and the
municipal center of Rabinal.

13. The petitioners allege that, early on the morning of July 18, 1982,
two grenades fell to the east and west of Plan de Sánchez. A group of approximately 60
men dressed in military uniforms and armed with assault rifles, and four "judiciales"
allegedly arrived in Plan de Sánchez between 2:00 and 3:00 p.m.2 Those
four judiciales were identified by witnesses, and the two officials in charge were
identified as Lieutenants Solares and Díaz. The petitioners report that soldiers
monitored points of entry into the community, while others went house to house rounding up
the population. Girls and young women were held in one location, while older women, men
and children were gathered in another. Approximately 20 girls between 12 and 20 years of
age were taken to one house where they were raped and then killed. The rest of the
population was forced into another house and the adjoining patio. The petitioners allege
that, at about 5:00 p.m., soldiers threw two hand grenades into that house, and then
sprayed it and the patio with sustained gunfire. Small children were hit or kicked to
death. Shots were reportedly heard in another location, where four bodies were later
found. The petitioners describe the soldiers as having subsequently set fire to the house
where the majority of the victims had been killed before leaving the community some hours
later.

14. The petitioners allege that residents who had not been present or
had escaped being rounded up returned early the next morning to find that house that had
been burned still smouldering and the bodies of most victims burned beyond recognition.
Military commissioners who arrived at the scene hours later reportedly consulted the
military base in Rabinal for instructions on how to deal with the bodies. Local PAC
members and survivors were then ordered to bury the bodies quickly, or the community would
be bombed. Most of the bodies were buried in 21 pits at the site of the massacre.
Survivors reported that soldiers returned every few days to pillage the houses and
threaten those who had returned. Fear of what had happened and of the returning soldiers
drove the survivors from the community for several years.

15. The petitioners report that, in 1993, members of the community
approached the Office of the Human Rights Ombudsman seeking support to denounce the
massacre and request the exhumation of the bodies, in order to prompt an investigation and
re-inter the bodies of their loved ones with dignity. After overcoming a series of
procedural obstacles, in mid-1994, the Guatemalan Team of Forensic Anthropology
(hereinafter "EAFG") exhumed 19 sites in Plan de Sánchez containing the remains
of at least 84 victims. The EAFG reported their findings in March of 1995.

16. The petitioners submit testimonial, circumstancial and physical
evidence in support of their allegations. The petitioners also cite the September 2, 1996
report of the Ombudsman for Human Rights on the massacres of Plan de Sánchez, Chichupac
and Rio Negro. The report establishes the responsibility of state agents, namely
PACs, military commissioners, members of the Army and high ranking officials, for
failing to protect the local population and for attempting to cover up the crimes to
ensure impunity for the material and intellectual authors. The Ombudsmans report
concludes that these massacres were carried out as part of a premeditated state policy.

17. The petitioners assert that the Plan de Sánchez massacre was
carried out pursuant to the "scorched earth" campaign of the State
"designed to defeat the insurgent movement through the strategic eradication of its
civilian support base." They indicate that this massacre was one of 42 carried out by
the Army in rural Guatemala in the month of July, 1982. They assert that the crimes
alleged in their petition constitute violations of Articles 4, 5, 7, 12, 13, 19, 21 and 24
of the American Convention, and that the failure of the State to investigate, prosecute or
punish those responsible, or repair the consequences further violates Articles 1(1), 8 and
25. They contend that the crimes represent massive violations of the Convention and the
relevant dispositions of international humanitarian law, and constitute crimes against
humanity and genocide.

18. With respect to the admissibility of the case, the petitioners
contend that the survivors invoked and pursued domestic remedies to the extent possible,
but that it was impossible to exhaust them. Domestic remedies had been essentially
unavailable because those involved were subjected to threats and intimidation, and the Law
of National Reconciliation impeded the prosecution of those responsible. Further, such
remedies had been ineffective because the authorities had failed to respond as required.
The petitioners allege that, prior to the massacre, residents of Plan de Sánchez
attempted to denounce acts of intimidation by soldiers before local judicial authorities.
Instead of receiving assistance, they were fined. After the massacre, the survivors were
threatened by soldiers and PACs and driven from the area for several years. Only in
1993 were they able to initiate their search for justice. The petitioners allege that the
obstacles placed in their path by the authorities caused the first exhumation to be
delayed for over a year, and the second for over two years. They report that the
compelling evidence presented to the Public Ministry in March of 1995 failed to provoke a
serious response. In summary, the petitioners assert that, notwithstanding the passage of
time since the massacre and the efforts of the survivors to pursue justice, the remedies
invoked had failed to produce any substantive results.

B. The Position of the State

19.As noted above, the State acknowledges that the massacre
at Plan de Sánchez occurred and condemns the loss of Guatemalan lives. The State
maintains that the killings were perpetrated in the context of an armed conflict in which
abuses were committed by both sides. In the course of the negotiations effectuated to
conclude that conflict, on June 23, 1994, the State and the Guatemalan National
Revolutionary Unity (hereinafter "URNG") signed the "Agreement on the
Establishment of the Commission to Clarify Past Human Rights Violations and Acts of
Violence that have Caused the Guatemalan Population to Suffer." The mandate of that
Commission is to clarify acts of violence linked with the conflict, without prejudice to
the ability of the victims to pursue criminal remedies. While the State notes that the CEH
is not empowered to exercise a judicial function, it does constitute a "national
instance" and would issue considerations with respect to institutional responsibility
for past human rights violations.

20. The State indicates that the gravity of the harm suffered as a
result of the events at Plan de Sánchez is evident. However, it maintains that it is
unable to address the alleged participation of the Guatemalan military, because the
Constitution of Guatemala attributes the exclusive competence to examine evidence and
issue conclusions with respect to individual responsibility to the judiciary.

21. With respect to the admissibility of the case before the
Commission, the State maintains that the petitioners failed to exhaust domestic remedies
as required. In its response to the petition, the State reported that: the events
denounced were pending before the Public Ministry in process No. 291-94; the Court of
First Instance of Cobán, Alta Verapaz, was seized of processes 391-93 and 344-95; and the
Public Ministry was awaiting the results of ballistics tests it had requested. The State
affirms that its legal system provides for the norms and procedures that guarantee the
administration of justice, and maintains that recourse to the inter-American system is
therefore inappropriate in this case. It indicates that the petitioners should present
their claims before the appropriate judicial authorities in order to participate actively
in the domestic proceedings, which include the legal measures to challenge decisions with
which they disagree. The State further alleges that the petition was filed beyond the time
limit set forth in the Convention and the Regulations of the Commission.

IV. ANALYSIS

A. Competence of the Commission

22. In accordance with its mandate, the Commission is competent to
examine the subject matter of this complaint, as it concerns alleged violations of
Articles 1, 4, 5, 7, 8, 12, 13, 19, 21, 24 and 25 of the American Convention. The State of
Guatemala has been a party to that Convention since its ratification of May 25, 1978, and
the allegations at issue concern alleged events subsequent to that date. The Convention
entered into force for all parties on July 18, 1978. The petitioners have locus standi
to appear pursuant to the terms of Article 44 of the Convention. In their submissions, the
petitioners have stated claims which, if consistent with other requirements and shown to
be true, could tend to establish the violation of a right protected by the American
Convention.

B. Requirements to Admit a Petition

23. The petition includes the information required by Article 32 of
the Commissions Regulations, and meets the conditions set forth in Article 46(1)(c)
of the American Convention and Article 39 of the Commissions Regulations, as it is
neither pending settlement in another international inter-governmental proceeding, nor
essentially duplicative of a petition pending or previously considered by the Commission.3

Exhaustion of Domestic Remedies

24. Article 46 of the American Convention specifies that, in order for
a case to be admitted, "remedies under domestic law [must] have been pursued and
exhausted in accordance with generally recognized principles of international law."
This requirement exists to ensure the state concerned the opportunity to resolve disputes
within its own legal framework. When domestic remedies are unavailable as a matter of fact
or law, however, the requirement that they be exhausted is excused.4
Article 46(2) of the Convention specifies that this exception applies: if the legislation
of the state concerned fails to afford due process for the protection of the right
allegedly violated; if the party alleging violation has been hindered in his or her access
to domestic remedies; or if there has been unwarranted delay in the issuance of a final
judgment. Consequently, when a petitioner alleges that he or she is unable to prove
exhaustion, Article 37 of the Commission's Regulations establishes that the burden then
shifts to the Government to demonstrate which specific domestic remedies remain to be
exhausted and offer effective relief for the harm alleged.

25. As set forth above, in the instant case the petitioners argue that
they invoked the remedies provided for under law, but that it has been impossible to
exhaust them. They invoke each of the three exceptions set forth in Article 46(2) of the
Convention. First, with respect to the availability of due process within the domestic
legal system, the petitioners allege that the Law of National Reconciliation constitutes a
potential impediment to the prosecution of the perpetrators.5 As the
petitioners have not demonstrated that the application of this Law has actually been
sought, or how it has otherwise affected the specific case under study, this allegation
need not be further addressed at this stage. Second, with respect to the question of
access to domestic remedies, the petitioners allege that acts of intimidation before,
during and subsequent to the massacre prevented those affected from seeking judicial
protection or recourse. Further, they allege that when some of the victims sought judicial
protection against threats by soldiers in the period prior to the massacre they were fined
and turned away. The petitioners argue that the denunciations initiated by the survivors
in 1993 have not been met with the measures of investigation required, and that the
pertinent authorities have hindered and delayed the measures they have invoked, such as
the exhumations, and requests for ballistics and other evidence. Third, the petitioners
allege that there has been an unwarranted delay in the issuance of a final judgment by the
Guatemalan judiciary.

26. The State maintains, first, that its authorities are seized of the
matter in the form of process 291-94 before the Public Ministry, and processes 391-93 and
344-95 before the Court of First Instance of Cobán, Alta Verapaz. Second, the State
asserts that the CEH is playing an important role in the investigation of past abuses and
attribution of institutional responsibility. With respect to the questions ofaccess
to remedies and delay in obtaining a final determination raised by the petitioners, the
State has not expressly responded to their assertion that victims seeking judicial
protection against threats prior to the massacre were turned away. Nor has it challenged
their allegations that the survivors were driven from the area of Plan de Sánchez by
fear, and that this same fear prevented them from seeking judicial recourse for eleven
years. Further, the State has provided no information as to why the criminal investigation
first invoked in 1993 remains in its initial stage.

27. The Commission finds that the survivors and family members of the
victims were prevented from invoking domestic remedies for a period of years due to the
fear which affected them and the general community. The rule of exhaustion of domestic
remedies does not require the invocation of remedies where this would place the physical
integrity of the petitioner at risk, or where this offers no possibility of success.6 In addition to the information in the record, Commission reports from the
period under study document the vulnerability of populations in rural areas to human
rights abuses, and the resulting climate of insecurity, and further indicate that, at the
time of the events denounced, the judiciary "had been stripped of its independence,
autonomy and impartiality."7 Even once the survivors felt able to
seek judicial recourse, the record in the case demonstrates that the criminal
investigation underway for over five years has yet to advance beyond the most initial
stage, leading the Commission to conclude that remedies have been subject to undue delay.
The State has invoked the pendency of judicial proceedings as the basis for its argument
that domestic remedies have not been exhausted as required, without having addressed the
deficiencies alleged by the petitioners. The formal existence of legal remedies is not, in
and of itself, sufficient to show that they offer the available and effective relief
required under the terms of Article 46(1)(a).8 Accordingly, the State has
failed to discharge the burden of proof set forth in Article 37 of the Commissions
Regulations.

28. While the State has also invoked the work being carried out by the
CEH as a means of clarifying past violations and establishing institutional
responsibility, it has acknowledged that the functions of the latter in no way substitute
for those of its judiciary. The mandate of the CEH specifically states that it shall not
attribute responsibility to any individual, nor shall its report and recommendations have
any judicial effect.9 Given that the "remedies under domestic
law" referred to in Article 46 of the Convention are judicial remedies effectuated in
accordance with the principles of due process,10 the vital work done by
the CEH presents no bar to the admissibility of the present case before this Commission.11

Timeliness

29. In its response of October 1, 1997, the State indicated that the
present petition had been filed beyond the time limit specified in the Convention, as
"recognized by the petitioner." The Commission has reviewed the record in detail
with respect to the question of timeliness, and has encountered no such acknowledgment. In
accordance with Article 46(1)(b) of the Convention, a petition must be presented in a
timely manner to be admitted, namely, within six months from the date on which the
complaining party was notified of the final judgment at the domestic level. The six months
rule ensures legal certainty and stability once a decision has been taken. The rule does
not apply when it has been impossible to exhaust internal remedies due to a lack of due
process, denial of access to remedies, or unwarranted delay in issuing a final decision.
In such a case, Article 38 of the Commissions Regulations establishes that the
deadline for presentation shall be "within a reasonable period of time, in the
Commissions judgment, as from the date on which the alleged violation of rights has
occurred, considering the circumstances of each specific case." Nor does this rule
apply where the allegations concern a continuing situation--where the rights of the victim
are allegedly affected on an ongoing basis.

30. Given the absence of a final judgment in the present case, the
findings set forth in the preceding section concerning domestic remedies, and the
petitioners allegations that the case involves an ongoing denial of justice, the
Commission is required to establish whether the petition was filed within a reasonable
time under the specific circumstances. The massacre is alleged to have taken place in
1982. The petitioners maintain that the survivors were unable to denounce the crimes
before the Guatemalan authorities prior to 1993 due to the acts of intimidation and
violence to which they had been subjected and their resulting fear. The State has not
expressly controverted these allegations. The petitioners allege that the survivors did
everything possible to exhaust the remedies they had invoked prior to filing their
petition with the Commission in October of 1996 (in English), and February of 1997 (in
Spanish). Pursuant to the foregoing analysis, and under the specific circumstances, the
Commission finds that the petitioners invoked domestic remedies when it was possible for
them to do so, andthe rule of timely presentation provides no bar to the
admissibility of the petition.

V. CONCLUSIONS

31. The Commission concludes that it has the competence to examine this
case and that the petition is admissible, in accordance with Articles 46 and 47 of the
American Convention.

32. On the basis of the findings of fact and law set forth above, and
without prejudging the merits of the matter,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

DECIDES:

1. To declare the present case admissible.

2. To transmit this report to the parties.

3. To continue with the analysis of the merits of the case.

4. To place itself at the disposal of the parties for the purpose of
reaching a friendly settlement on the basis of respect for the human rights protected in
the American Convention, and to invite the parties to indicate their response as to this
possibility.

5. To make this report public, and publish it in its Annual Report to
the General Assembly of the OAS.

Done and signed at the headquarters of the Inter-American Commission on Human Rights
(IACHR), in the city of Washington, D.C., on the 11th day of the month of March in the
year 1999. (Signed): Robert K. Goldman, President; Hélio Bicudo, First Vice President;
Claudio Grossman, Second Vice President; Commissioners Alvaro Tirado Mejía and Carlos
Ayala.

The PACs were established at the end of 1981 by
the de facto military regime of General Ríos Montt, as part of its policy to
exterminate the guerilla movement through the relocation of the indigenous population, and
the eradication of "any community or ... person that his government was suspicious
of, using methods that violated human rights." IACHR, Fourth Report on the
Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.83, Doc. 16 rev., June 1, 1993,
at 53. The PACs were initiated in the Department of El Quiché, and expanded to other
Departments. See generally, id. ch. VI.

The petitioners indicate that the "judiciales"
had been an investigative body of the police. They had reportedly ceased to exist as an
official matter prior to the events denounced, but had continued to function as a factual
matter in association with the Department of Army Intelligence. The petitioners allege
that these persons were known in their communities in this capacity and were able to
threaten and intimidate the population with impunity.

This norm concerns proceedings of an
international governmental nature. The work conducted by the CEH does not implicate this
provision, nor have the parties alleged that it does. The CEH is an independent
institution created by the Guatemalan Peace Accords to investigate and report on the human
rights violations and acts of violence committed in connection with the armed conflict.
The CEH recently issued a final report on the results of its investigations and the causes
which gave rise to the conflict, as well as recommendations aimed at ensuring the
non-repetition of such violations.

The Law of National Reconciliation provides
that the extinction of criminal responsibility may be applied to: political crimes against
the State, the institutional order and public administration; common crimes
"directly, objectively, intentionally and causally" linked to political crimes;
and common crimes perpetrated with the aim of preventing, impeding or pursuing political
and related common crimes. The Law establishes that amnesty shall not apply to the crimes
of genocide, torture, forced disappearance, and those with respect to which there is no
statute of limitations or for which amnesty is prohibited under internal law or
Guatemalas international treaty obligation.

The Commission has affirmed that,
notwithstanding the importance and value of the work of commissions designed to establish
the truth about past human rights violations, their functions do not substitute for an
adequate judicial process, and they do not replace the obligation of the State to
investigate violations committed within its jurisdiction in order to identify those
responsible, impose the appropriate sanctions, and provide reparation to the victim. See,
e.g., IACHR, Report 1/99, Case 10.480, El Salvador, appd for publication Jan.
27, 1999; Report 36/96, Case 10.843, Chile, published in, Annual Report of the
IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., Mar. 14, 1997, at p. 156, 175-76, paras.
74-77; Report 28/92, Cases 10.147 et al., Argentina, published in, Annual Report
of the IACHR 1992-93, OEA/Ser.L/V/II.83, Doc. 14, corr. 1, March 12, 1993, at p. 41,
50-51; and Report on the Situation of Human Rights in El Salvador,
OEA/Ser.L/V/II.85, Doc. 28 rev., Feb. 11, 1994, at p. 71.